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Sony wins Aussie mod- chip sales ban

Legal retreat

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Australia is now officially under the thumb of the mod-chip banners, after the Court of Appeal, accepted its argument that mod-chips should be made illegal.

Mod chips enable games console players to overcome protection built into their machines to run imported games bought legitimately and to back up games legitimately. But they also facilitate the playing of pirated games too.

For a short time, selling mod chips in Australia was legal - officially, following a court ruling last July. Sony had filed a suit against a Sydney mod-chip trader, Eddy Stevens.

Stevens is no hero: he was found guilty in a separate case of selling pirated software. But he won a famous victory, albeit on curious grounds. The judge ruled that Sony had failed to establish that mod chips constituted a "technological protection measure" that protected the copyright of its games software. If mod chips don't protect copyright then selling them does not violate copyright laws, he reasoned.

Not exactly a cast-iron defence, then, and successful largely because Sony messed up its presentation, reports at the time say. Sony duly won its appeal, now confirmed.

Following the latest ruling, it is still legal for Australians to own mod-chips, but it is illegal to sell mod-chips to Australians.

Even though mod-chips can be used to run pirated games, it is difficult to drum up much sympathy for the console makers. For mod-chips overcome built-in regional protection, an entirely consumer hostile measure. This means that games made for the US say won't work on consoles sold in Europe. The sole purpose of such restrictive distribution is to charge punters more money than would be otherwise possible in a grey market.

Australia's mod-chip ruling snares an interesting victim, software firm Hibana. The company has designed a mod-chip which enables people to run Linux on the Xbox. The company claims this is legal under Australian law but is suspending sales while it seeks legal opinion.

Of course, Xbox units are heavily subsidised by Microsoft, and the software giant which has hobbled the machine precisely so it cannot be used as a cut-down PC. But should this be afforded the protection of law from Linux hackers and mod-chip makers?

Mod-chips are under fire across the world. In April, 2003, David Rocci, 23 was sentenced in a US court to five months in jail and fined $28,500 under the DMXA Act for selling Enigmah Xbox mod chips on the Isonews.com web site. In plea bargaining, Rocci also handed over the domain Isonews.com to the Department of Justice, which turned it into an anti-piracy propaganda web site. The DoJ failed entirely in shutting down IsoNews, a kind of bible for the discerning software copier. It lives on here. ®

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